Prosecuting Russia: The possibilities, challenges and risks of a special tribunal

Yet despite the lofty pledges of European politicians, there is little chance that Western powers could set up a special international tribunal to prosecute the top Russia political decision-makers for attacking Ukraine.

While in principle most agree that Russia’s invasion of a sovereign country, Ukraine, should not go unpunished, it is doubtful they could agree on the special tribunal format which has the most legitimacy and is the preferred option of Ukraine.

The foreign ministers of the largest Western powers in the G7 in mid-April have backed a tribunal model that is rooted in Ukrainian law with international elements but is not a full-fledged international special tribunal.

"It is increasingly clear that the ‘hybrid’ tribunal will be the solution," one senior EU official said last Friday, referring to the G7 statement.

However, the official added "there is no full agreement within the EU" on the issue. Member states diplomats will have another go at coaching a consensus this Monday (24 April).

Special vs. ‘hybrid’ tribunal

The focus of the complicated legal and political discussions is on prosecuting the crime of aggression.

It is dubbed the "mother of all crimes", as none of the other serious international crimes would have been committed without it. It needs to be prosecuted to defend the rule-based world order, several diplomats argue.

It is also called the "leadership crime" because it allows the top political and military brass of the attacking country to be prosecuted, not just the actual soldiers who fired shots.

The International Criminal Court (ICC) has jurisdiction to investigate genocide, war crimes, and crimes against humanity, and in one such case in March, it issued an arrest warrant against Russian president Vladimir Putin.

However, the ICC cannot investigate the crime of aggression because neither Russia, nor Ukraine is part of its statute.

The UN security council has the right to refer a case to the ICC, but a Russian veto would prevent it. Amending the ICC statute to include the prosecution of the crime of aggression even in countries that are not party to it would take time.

Because of these limitations, Ukraine and its supporters have been arguing for a special tribunal on the crimes of aggression created through an agreement between Ukraine and the UN, based on a resolution of the UN general assembly.

Scholars argue it would have the most legitimacy, be the most efficient, and could overcome personal immunities granted under international law for sitting leaders of countries.

Yet, there is no consensus among EU governments to back this option.

"We are very open to have a pragmatic approach, we will see what kind of solution will have a very broad support," EU justice commissioner Didier Reynders said in March, adding: "we need a very important international backing, maybe in the general assembly in the UN, to go further."

The competing idea, which has been backed by the G7, is to have a "hybrid" tribunal, based on Ukrainian law with international elements, such as being adjudicated in the Hague with international justices also presiding.

"The only way to have maximum legitimacy for the creation of the tribunal is to go through the UN general assembly. But, it is doubtful that there will be a UN general assembly majority in favour of the creation of the tribunal," Vaios Koutroulis, professor of public international law at the Université libre de Bruxelles, told EUobserver.

Commissioner Reynders called going through the ICC the "gold solution", and called setting up the special tribunal the "silver" solution. He described having the hybrid court, a "bronze solution".

Stopping the Russian patter

Ukraine and its allies continue to argue for the silver option.

"We see a pattern, in Georgia, in Syria, and they [Russians] have not been held accountable. It is of utmost importance to prosecute the ‘mother of all crimes’. If not, there would be no solution to the systematic problem Russia represents," argued one diplomat on condition of anonymity because of the sensitivity of the issue.

„The hybrid tribunal would not solve the problem. First of all, it would be impossible to create such a tribunal, because the constitution of Ukraine does not allow it. Also, the hybrid tribunal could not address the issue of immunity of heads of state — thus, the biggest criminals could not be held accountable," the diplomat added.

However, other countries, including the largest ones in the bloc, have been more supportive of the hybrid model. Some EU governments are concerned about a possible failure in the UN general assembly and setting a precedent that could come back to haunt them.

"There is a fear that we don’t want to be very loud, and in the end, not have sufficient international support," said a second EU diplomat, adding that "it would be nice to have around 140 countries backing the UN resolution, which might be mission impossible, it is hard to tell." The assembly consists of 193 countries.

A third diplomat said the hybrid tribunal is "not as workable and realistic" as the special tribunal because the hybrid option has to be based on Ukrainian system and would require a constitutional change in Ukraine. However, the constitution cannot be changed under martial law.

"A special tribunal would be clearly about the leadership crime. With the hybrid tribunal, there are big questions about immunity and international legitimacy," said this senior diplomat.

"Yes, it is a more difficult path to go. And yes, we hear arguments coming from Paris and elsewhere, but if you want to really achieve international justice, we have to work on it in the UN, and achieve this big international coalition and establish a real tribunal rather than the one which might have doubts on legitimacy," the diplomat argued.

"We have to get it right," the diplomat said.

The EU Commission last November presented the two options and ambassadors and diplomats have discussed it multiple times.

Is Ukraine ‘special’?

There are several reasons why the big governments are reluctant to push for the special tribunal: they unlikely to gather enough votes, and it could come back to bite (at least some of) them.

In February, a UN resolution calling for an end to the war, as the war entered its second year, was supported by 141 countries while seven voted against it, and 32 abstained.

But last November, a resolution calling for Russia to be held accountable for its conduct in Ukraine, and recognising that Russia must be responsible for making reparations, was supported only by 94 countries.

"These records show that states are ready to call out Russia and say it has violated international law, but this is as far as they are willing to go for the time being. A lot of countries seem reluctant to take the next step and go to the concrete consequences of this violation," professor Koutroulis said.

"The reason is that criminal responsibility goes at the heart of the exercise of state sovereignty," he explained.

Several European diplomats argue that the consequences of not doing enough will be wide-spread.

„Some in the global south view the war in Ukraine as a regional conflict. But Russia’s aggression in Ukraine has widespread global consequences and impacts also the countries in the global south," argued a diplomat, citing the examples of "mining of grain fields and preventing grain transport threatens global food security".

"Impunity for aggression threatens the security of us all, and therefore it is especially important to jointly confront the aggressor and hold the perpetrators accountable," the diplomat added.

But the numbers are unlikely to add up.

"If you can’t have a majority in the general assembly in favour of your proposal, then this is a clear sign that the project of the creation of the tribunal is not legitimate in the eyes of many states," Koutroulis added.

"How can you persuade the Democratic Republic of the Congo whose territory has been occupied by Uganda — and a much larger territory than the one currently occupied by Russia in Ukraine and with more victims — that what happens now is exceptional?," the professor said.

Part of the concern — within the EU as well — is that negotiations over a special tribunal would quickly turn into a discussion about the US intervention in Iraq or Afghanistan, or French intervention in Western Africa.

’Double standards’ exploited

And Russia makes sure it exploits those discussions.

"This [reluctance] shows that the double standards argument by Russia has found its way at least to a number of states," Koutroulis warned.

"Acts of aggression were committed before. Did we punish the heads of state that committed these acts of aggression? No, we didn’t. This double standard argument apparently speaks to several states," Koutroulis said.

Such a special tribunal would also create a precedent, which Western countries would have to accept.

"It is exceptional to judge high state officials, much less heads of state, for the act of aggression. Aside from Nuremberg and Tokyo, no international or special tribunal has had jurisdiction for the crime of aggression, this is a precedent-setting scenario," Koutroulis said.

"You cannot have a sui generis scenario, in which you say that this situation is so exceptional, and the persons responsible deserve to be punished, but only in this case. This is a problematic argument," he added, saying that states that want to apply a rule to Russia, must accept that the same rule will apply to them as well.

"For example, it will be difficult for the US to plead that Russian officials can be judged by a tribunal that Russia has not accepted and at the same time protest because the ICC exercises its jurisdiction against US officials for crimes committed in Afghanistan," Koutroulis said.

"Your own violations come back to haunt you," he added.

Evidence

While the tribunal is under discussion, the EU has helped set up structures to collect and store evidence of possible war crimes.

In February, the EU helped set-up the International Centre for the Prosecution of the Crime of Aggression against Ukraine, which provides a structure for the cooperation on the collection, preservation and analysis of evidence related to the crime of aggression for any future trial.

A Joint Investigation Team has also been established with the support of Eurojust, the EU’s judicial agency, to collect evidence and investigate the core international crimes committed in Ukraine. The team consists of the ICC, Ukraine, Lithuania, Poland, Estonia, Latvia, Slovakia, and Romania.

The commission has also allocated €10m in support of the ICC’s work on Ukraine.

Ukraine’s allies are continuing to push for the special tribunal in the UN.

"Ensuring accountability for the crime of aggression committed against Ukraine is critical in order to signal that such a crime will not be repeated in the future nor go unpunished," several countries said in a statement earlier this month.

"An international tribunal, before which the immunities granted by international law to the most senior leadership of a state do not apply, is best placed to deliver," they argued, calling for the establishment of such tribunal through the UN general assembly.